Can a Texas county donate money or services to a chamber of commerce that runs a local festival?

Texas AG Opinion JM-1199: Can a County Give Money to a Local Festival's Chamber of Commerce?

Plain-English summary

The Chambers County Attorney asked whether the county could donate money, property, or services, including the time of county-paid employees, to local nonprofit corporations that run annual festivals: the Texas Rice Festival, the Texas Salt Dome Festival, and a similar event held by the Anahuac Area Chamber of Commerce. These organizations had asked the county for such donations from time to time.

The Attorney General concluded the county could not make unconditional donations of money, property, or services to these private corporations. The Texas Constitution bars a county from donating money or anything of value to a corporation, and public funds may be spent only for a public purpose with adequate controls in place to ensure that purpose is actually achieved. But the opinion did not stop there: it distinguished a straight donation from spending the county might independently be authorized to make for its own public purposes, such as public health and sanitation needs (fencing, portable toilets) that arise because a large festival crowd gathers, or law enforcement deployment decisions that are within the sheriff's own discretion regardless of who organized the event drawing the crowd. It also confirmed the county could participate with the Texas A&M Agricultural Extension Service in running a youth livestock show, so long as the county kept enough control over the project to ensure county funds were spent for the legislatively authorized recreational purpose.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Who this opinion affected (as of 1990)

County commissioners courts approached by festival organizers for donations: The opinion held that a county could not make unconditional grants of money, property, or services to chambers of commerce or similar nonprofit corporations that run local festivals, since counties have no general power to donate to private entities.

Chambers of commerce and festival nonprofits themselves: The opinion meant these organizations could not rely on straight county donations to fund their events, though the county might independently spend money on public health, sanitation, or safety measures connected to a festival if statutory authority covered that spending.

County sheriffs deploying officers at large public gatherings: The opinion confirmed that decisions about how many officers to assign to a festival are within the sheriff's own law-enforcement discretion, not a donation to the festival's organizers, and are reviewable only for abuse of that discretion.

Counties considering a youth livestock show with the Texas A&M Extension Service: The opinion approved this kind of cooperative arrangement, provided the county retained sufficient control to ensure its budgeted funds were used for the legislatively authorized recreational and exhibition purposes.

Common questions

Can a Texas county just write a check to the local chamber of commerce to help fund a festival?
No. The opinion concluded the Texas Constitution's prohibition on counties donating money or anything of value to a corporation bars unconditional grants to chambers of commerce or similar private festival organizers.

Can a county still pay for portable toilets, fencing, or police at a privately-run festival?
The opinion said a county has discretion under the Health and Safety Code to spend money for public health and sanitation needs that arise in the county, which could cover things like fencing or portable toilets at a large gathering, but whether a particular expense qualifies depends on the facts, and the county has no general police power beyond what the constitution and legislature have specifically granted it.

Who decides how many deputies get sent to a festival, and is that a donation to the organizers?
The sheriff decides. The opinion explained that a sheriff's decision on deploying law enforcement officers is a matter of the sheriff's own discretion in preserving the peace, not a county donation to the private festival, and is reviewable only for abuse of that discretion.

Can a county help run a youth livestock show with a private group like the Texas A&M Extension Service?
Yes, according to the opinion, so long as the county retains enough control over the project to make sure the funds it budgets are actually spent on the legislatively authorized purpose of providing recreational and exhibition programs for youth.

Background and statutory framework

Article III, section 52, and article XI, section 3, of the Texas Constitution prohibit a county from donating money or any other thing of value to a corporation. Because public funds may be spent only for a public purpose, any arrangement between a county and a private entity must include adequate controls, whether contractual or otherwise, to ensure that the public purpose is actually accomplished rather than merely providing an incidental benefit dressed up as a public expenditure. The opinion traced this rule through prior case law holding that a taxpayer could enjoin a city's illegal donation to a chamber of commerce, and an earlier Attorney General opinion holding the legislature could not authorize a county to become a dues-paying member of a chamber of commerce.

Because a county's commissioners court has no general police power like the state or many municipalities, and possesses only the powers expressly granted by the constitution and legislature (plus powers necessarily implied to carry those out), any county spending connected to a privately-run festival needs its own independent statutory basis, separate from any question of "donating" to the festival's organizers. The opinion identified Health and Safety Code section 122.001, which lets a commissioners court spend county general-revenue funds on public health and sanitation, as a potential basis for expenses like fencing or portable toilets, but noted that whether a specific expenditure qualifies is a fact-dependent judgment subject to review only for abuse of discretion, and that no facts about a particular festival's needs (such as whether it would be held in a county park) had been supplied.

Separately, the opinion noted that sheriffs and deputies are peace officers with an independent duty to preserve the peace under the Code of Criminal Procedure, and that decisions about deploying officers to a well-attended event are a matter for the sheriff's own discretion, not something that turns on whether the county has "donated" resources to the event's private organizers. Finally, on the youth livestock show, the opinion pointed to Local Government Code section 319.001 (county authority to hold annual exhibits of agricultural and livestock products) and section 332.002 (county authority over recreational facilities and programs) as sufficient authority for a county to sponsor and budget for the show while cooperating with the Texas A&M Extension Service's volunteer-run operations, provided the county retained enough oversight to ensure its funds served the authorized purpose.

Citations

Statutes:

• Tex. Const. art. III, § 52 (prohibition on county donations to corporations)
• Tex. Const. art. XI, § 3 (prohibition on county subscription to private capital)
• Health & Safety Code § 122.001 (county authority to spend for public health and sanitation)
• Code Crim. Proc. art. 2.12 (peace officers)
• Code Crim. Proc. art. 2.13 (duty of peace officers to preserve the peace)
• Local Gov't Code § 85.004 (appointment of reserve deputies)
• Local Gov't Code § 319.001 (county authority to hold agricultural/livestock exhibits)
• Local Gov't Code § 332.002 (county authority over recreational facilities and programs)

Cases:

• Key v. Commissioners Court of Marion County, 727 S.W.2d 667 (Tex. App.-Texarkana 1987, no writ)
• Kordus v. City of Garland, 561 S.W.2d 260 (Tex. Civ. App.-Tyler 1978, writ ref'd n.r.e.)
• Young v. City of Houston, 756 S.W.2d 813 (Tex. App.-Houston [1st Dist.] 1988, writ denied)
• State v. City of Austin, 331 S.W.2d 737 (Tex. 1960)
• Travis County v. Colunga, 753 S.W.2d 716 (Tex. App.-Austin 1988, writ denied)
• Commissioners' Court of Harris County v. Kaiser, 23 S.W.2d 840 (Tex. Civ. App.-Galveston 1929, writ ref'd)
• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)
• Weber v. City of Sachse, 591 S.W.2d 563, 567 (Tex. Civ. App.-Dallas 1979, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1199
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1199.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

July 31, 1990

Honorable Charles S. Brack
Chambers County Attorney
P. O. Box 1200
Anahuac, Texas 77514

Opinion No. JM-1199

Re: Authority of county to donate money, property, or services to nonprofit corporations that conduct local festivals (RQ-1911)

Dear Mr. Brack:

You ask whether Chambers County may donate money, property, or services to local, nonprofit corporations that conduct annual festivals in the county. The Texas Rice Festival and the Texas Salt Dome Festival promote local products and businesses. They each conduct an annual festival that includes concerts, carnivals for children, food booths, and other exhibits and programs. The Anahuac Area Chamber of Commerce, which promotes Anahuac and surrounding areas, also holds a similar festival. From time to time, these entities have asked the county for donations of money, property, and services provided through county-paid employees.

Article III, section 52, and article XI, section 3, of the Texas Constitution prohibit a county from donating money or any other thing of value to a corporation. Key v. Commissioners Court of Marion County, 727 S.W.2d 667 (Tex. App.-Texarkana 1987, no writ); Kordus v. City of Garland, 561 S.W.2d 260 (Tex. Civ. App.-Tyler 1978, writ ref'd n.r.e.). Public funds may be spent only for a public purpose. Young v. City of Houston, 756 S.W.2d 813 (Tex. App.-Houston [1st Dist.] 1988, writ denied); see generally State v. City of Austin, 331 S.W.2d 737 (Tex. 1960). Adequate controls, contractual or otherwise, must govern a transaction between a county and a private entity to insure that the public purpose is accomplished. Key v. Commissioners Court of Marion County, supra, at 669.

In Kordus v. City of Garland, the court held that a taxpayer could enjoin a city's illegal donation of public funds to a chamber of commerce. The decision cited Attorney General Opinion H-397 (1974), which held that article III, section 52, of the Texas Constitution prohibited the legislature from authorizing a county to become a dues-paying member of a chamber of commerce. Based on these authorities, we conclude that you may not make unconditional grants of money, property, or any "thing of value" to the entities in question.

You suggest that the county could provide fencing, portable toilets, police protection and other things necessary for the health and safety of the people who attend the festivals. You state that supplying such services and things of value would not be contributions by the county to the corporations, but would fall within the police powers of the county.

The commissioners court of a county has no general police power, such as that possessed by the state and many municipalities. Travis County v. Colunga, 753 S.W.2d 716 (Tex. App.-Austin 1988, writ denied); Commissioners' Court of Harris County v. Kaiser, 23 S.W.2d 840 (Tex. Civ. App.-Galveston 1929, writ ref'd). The commissioners court has the powers expressly conferred upon it by the constitution and the legislature, as well as the implied powers necessary to exercise powers expressly conferred. Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948). Any expenditures of county funds made in connection with the festivals must be based on statutory or constitutional authority.

Section 122.001 of the Health and Safety Code provides that the commissioners court of a county may appropriate and spend money from the county general revenues for public health and sanitation in the county. Thus, the county has discretion to make expenditures for public health and sanitation needs that arise in connection with the proposed festivals. Whether an expenditure for a particular purpose is within the authority granted by section 122.001 depends on the surrounding facts and circumstances. You have provided no facts, such as whether this event will be held in a county park. The commissioners court may make reasonable decisions under section 122.001 to spend county funds to protect the public health, subject to judicial review for abuse of discretion.

Sheriffs and their deputies are peace officers, and it is their duty to preserve the peace within their jurisdiction. Code Crim. Proc. arts. 2.12, 2.13. The sheriff's decisions as to the deployment of law enforcement officers within the county are left to his discretion and judgment, since this matter is not specifically prescribed by law. Weber v. City of Sachse, 591 S.W.2d 563, 567 (Tex. Civ. App.-Dallas 1979, no writ). The decision to assign a number of law enforcement officers to an area where a large number of persons are gathered for a festival is a matter for the sheriff's discretion, subject to judicial review for abuse of discretion. Id. See also Local Gov't Code § 85.004 (appointment of reserve deputies to serve when additional officers needed); Attorney General Opinion H-1002 (1977).

You next ask whether Chambers County may participate with the Texas A & M Agricultural Extension Service by providing money, property, or services in sponsoring a youth program called "Chambers County Youth Project Show," which is similar to a livestock show. Chambers County sponsors the show and budgets the expenditures. The extension service handles the operation of the show through volunteer committees of parents and other interested persons.

Section 319.001 of the Local Government Code authorizes the commissioners court of a county to provide for annual exhibits of "horticultural, agricultural, livestock, mineral, and other products" that are of interest to the community. Section 332.002 of the code authorizes a county to establish and supervise recreational facilities and programs. These statutes authorize a county to provide recreational programs for youth, including a livestock show. In Attorney General Opinion H-127 (1973) this office determined that a county could use federal revenue sharing funds to contract with a nonprofit corporation to provide a recreation facility for the aged. In our opinion, Chambers County may cooperate with and receive voluntary services from the Agricultural Extension Service of Texas A & M University to assist it in operating the show, but it must retain sufficient control of the project to ensure that funds budgeted by the county are used for the legislatively authorized purposes.

SUMMARY

A county may not donate money to a chamber of commerce or a similar private corporation to fund festivals that promote local businesses and products. Where a county has statutory authority to spend county funds to protect public health, sanitation, and safety, it may do so when the need for such protection arises out of a festival held by a private corporation. A county has statutory authority to hold livestock shows and provide for recreation for youth.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General